Abortion, morality, and the law.

Vaginal Probes

Abortion, morality, and the law.

Ross Douthat, a pro-life thinker, is venturing out into the middle ground of abortion regulation. It's a risky and delicate venture. It's also faithful to the complexity of the subject. Let's go out to meet him.

In Tuesday's New York Times, Douthat concedes that some abortions are worse than others. Abortions are worse in the second trimester than in the first. Repeat abortions are worse than first-time abortions. Abortions for 20-year-olds are worse than abortions for 10-year-olds. Elective abortions are worse than abortions to protect the woman's health or to terminate fetuses that, in Douthat's words, would "be born into suffering and certain death."

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

Many pro-choice activists reject such judgments. They treat reproductive health care as a gray blur impervious to objective moral distinctions. Only the woman can decide, they argue. Therefore, only the woman can judge.

But decision and judgment are different things. People do bad or stupid things all the time. And we allow it, because we don't want to live in a world where the government runs everything.

Douthat is making an important concession: Abortion isn't all or nothing. To say that some abortions are worse than others is to concede a continuum of gray in which moral negotiation is possible. In exchange, he seeks acknowledgment of another truth: This gray continuum is made of tiny pixels that are, on closer inspection, black and white. What makes the morality of abortions difficult to judge isn't that they're all the same shade of gray. It's that each has its own unique composition of pixels. You've come in for your first abortion, immediately after missing your period, because you weren't using birth control. Your pregnancy seems perfectly healthy, and your parents would help you raise the child, but your boyfriend won't, and you might never finish your education.

That's not a mess of gray. It's a constellation of seven conflicting moral facts. And we know that judgments can be made about facts like these, because women make such judgments every day. Nor are these judgments purely subjective. Give 100 men and women the scenario above, and a clear majority will agree which of the seven facts make abortion more or less understandable. What they won't agree on is the bottom line.

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Douthat wants to translate these pixels into law. "The argument that some abortions take place in particularly awful, particularly understandable circumstances is not a case against regulating abortion," he writes. "It's the beginning of precisely the kind of reasonable distinction-making that would produce a saner, stricter legal regime."

But what kind of regulation are we talking about? That question is just as complex as the morality of abortion. Criminal law is the crudest kind of regulation. Civil law is somewhat lighter. Then there's collective medical regulation by doctors: committees, associations, and licensing. Then there are the moral codes of individual physicians, who refuse to do abortions beyond a certain point or without what they regard as adequate justification. Then there are the consciences of pregnant women, influenced by churches and other institutions. They're the main reason why 88 percent of abortions are taken care of in the first trimester.

Boys can be taught sexual responsibility in schools. The president can lower the abortion rate by using his voice instead of a constitutional amendment. Clinics, rather than cops, can reduce the number of women coming back for repeat abortions.

"One reason there's so much fierce argument about the latest of late-term abortions," Douthat writes, "is that Americans aren't permitted to debate anything else. Under current law, if you want to restrict abortion, post-viability procedures are the only kind you're allowed to even regulate."

That's not true. Look at the laws in Mississippi: state-dictated counseling, a 24-hour waiting period, and requirement that "both parents of a girl under 18 must consent to the abortion." I don't like these laws, but they're proof that regulation exists throughout pregnancy. Their consideration was part of a democratic debate that goes on every day across this country. Pro-lifers engage freely in this debate, sometimes even with the support of the New York Times.

And that's a good thing. Debates produce an exchange of ideas and criticism that sharpens the thinking of both sides. By wrestling honestly with the arguments against abortion regulation, Douthat has come to a nuanced understanding that defies pro-life absolutism. He's advancing the conversation.

The next challenge is to think as carefully about regulation as we do about morality. Under the Partial Birth Abortion Ban Act, for example, "Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both." Criminal investigation? Two years in prison? Is that the kind of regulation we want?

"The law is a not a philosophy seminar," Douthat writes. "It's the place where morality meets custom, and compromise, and common sense." But law is more than that. It's the set of rules enforced by police, detectives, judges, and jails. Banning abortions isn't just a statement of "respect for human life," as many pro-lifers imagine. It's a commitment to investigate, prosecute, and punish.

I'm all for morality, custom, compromise, and common sense. These elements of society have plenty to say about abortion, and they're saying it. But criminal law? Do we really want to go that far?